by K.T. Weaver, for Take Back Your Power
Last week, SkyVision Solutions released an updated report entitled, “A Perspective on How Smart Meters Invade Individual Privacy.”
The original report was issued in March of this year and has now been updated with new information regarding investor owned utilities (IOUs) as well as addressing a White House report concerning “big data” published in May 2014.
Summary Conclusions
The 75-page report is perhaps the most comprehensive document of its kind on the topic of smart meter privacy invasions. Through a step-by-step logical approach, it is demonstrated that the collection of incremental energy-related data for residential electric customers using smart meters represents an unreasonable invasion of privacy and, for applicable jurisdictions, constitutes an unreasonable search in violation of the Fourth Amendment of the United States Constitution.
Based upon the information presented in the updated privacy document, it is established that utilities expose consumers to unnecessary risks by collecting massive amounts of smart meter-related data not necessary for billing purposes simply because “they can” and do so without regard to consumer privacy and security interests.
Smart meter data, consisting of granular, fine-grained, high-frequency type of energy usage measurements, can be used by others either maliciously or inadvertently using existing or developing technology to infer types of activities or occupancies of a home for specific periods of time. Analysis of granular smart meter energy data results in or may result in:
- Invasion of privacy and intrusion of solitude;
- Near real-time surveillance;
- Behavior profiling;
- Endangering the physical security of life, family, and property; and
- Unwanted publicity and embarrassment (e.g., public disclosure of private facts or the publication of facts which place a person in a false light).
More specifically, analysis of smart meter data or manipulation of smart meter data/firmware can be used for the following purposes:
- Determine how many people are home and at what times;
- Determine your sleeping routines;
- Determine your eating routines;
- Determine what appliances you use when, e.g., washer, dryer, toaster, furnace, A/C, microwave, medical devices … the list is almost endless depending on the granularity of the data;
- Determine when a home is vacant (for planning a burglary), who has high-priced appliances, and who has a security system;
- Law enforcement can obtain information to identify suspicious or illegal behavior or later determine whether you were home on the night of the alleged crime;
- Landlords can spy on tenants through an online utility account portal;
- For consumers with plug-in electric vehicles, charging data can be used to identify travel routines and history;
- Utilities can promote targeted energy management services and products;
- Marketers could obtain information for targeted advertising;
Hackers could wirelessly update smart meter firmware and remotely disconnect users. This could also allow attackers to corrupt the smart meters of individual homes, running up bogus charges or cause an electrical system to malfunction, shut down, or surge (frying all of your outlets and anything connected to them). Cyber assaults could involve hackers causing networked thermostats and appliances to malfunction possibly causing physical harm, especially to vulnerable populations. [Reference: “The Future of Crime” article, dated May 14, 2014];- In combination with smart water meter data, exact times for taking a shower or bath can be determined and, with even greater accuracy, when is a home vacant and susceptible to undetected burglary.
With regard to informing consumers of smart grid risk-related information, utilities and manufacturers have no incentive to inform consumers of these risks since such action would create an even greater consumer backlash against the deployment of the smart grid technologies. Risk-related information is being deliberately suppressed by the smart grid industry, and the public is being provided misinformation which would indicate that there are no additional privacy or security risks related to smart meters as compared to the old analog meters.
Smart Meter Privacy Invasions by Investor Owned Utilities (IOUs)
It is broadly stated that the Fourth Amendment applies only to acts by the government. However, if an investor owned utility (IOU) company is ordered by a state public utility commission to install privacy invading smart meters as part of a mandate or otherwise ordered to charge a penalty fee for those refusing smart meters, then the private utility arguably becomes an “instrument or agent of the state” and must abide by Fourth Amendment provisions.
The legal argument runs along the lines that if the state public utility commission orders the utility to record larger quantities of data than is customary, then Fourth Amendment provisions apply. A key point in the argument is that the “customary” data set is that necessary for calculating a monthly utility bill, i.e., a once per month meter read. When a private “investor-owned” utility is ordered by a state public utility commission to install granular data collecting smart meter technology and/or to charge tariffs for those customers refusing such installations, then such orders constitute “state action.” As such, the state utility commission and private utility company are now subject to the limitations of the Fourth Amendment.
When the “state actions” are further determined to constitute an unreasonable invasion of privacy, then those organizations have violated the Fourth Amendment rights of the affected customers.
The White House Report on Big Data and Privacy
In May 2014, a White House report was issued from the Executive Office of the President, entitled, “Big Data: Seizing Opportunities, Preserving Values.”
Somewhat remarkably, if one reads the White House report and a referenced paper to be quoted below, one will discover that the content is consistent with the assertions of the privacy report prepared by SkyVision Solutions.
The White House report recognizes the necessary protection of citizen privacy interests where it states:
“A legal framework for the protection of privacy interests has grown up in the United States that includes constitutional, federal, state, and common law elements. ‘Privacy’ is thus not a narrow concept, but instead addresses a range of concerns reflecting different types of intrusion into a person’s sense of self, each requiring different protections.”
“Big data” is described as “large, diverse, complex, longitudinal, and/or distributed datasets generated from instruments, sensors, Internet transactions, email, video, click streams, and/or all other digital sources available today and in the future.” Such data would include information collected from utility smart meters, and it was recognized that privacy would be affected by such data collection where the White House report states:
“Power consumption data collected from demand-response systems show when you move about your house.”
The White House report further references a document called “A Privacy-Aware Architecture for Demand Response Systems,” by Stephen Wicker and Robert Thomas, January 2011.
The Referenced Wicker and Thomas Paper
What follows are several quotes from the Wicker and Thomas paper referenced in the White House report.
From the abstract:
“We explore the privacy issues implicated by the development of demand response systems. We begin by highlighting the invasive nature of fine-granularity power consumption data, showing that the data collected by Advanced Metering Infrastructure (AMI) reveals detailed information about behavior within the home.”
Quoting section 3 of the paper, “AMI and the threat to privacy”:
“It has been shown that the detailed power consumption data collected by advanced metering systems reveals information about in-home activities. Furthermore, such data can be combined with other readily available information to discover even more about occupant’s activities.”
[Commentary: Utilities typically deny that detailed power consumption data can reveal in-home activities.]
Other sections of the paper emphasize the following key elements of a successful metering program:
[Commentary: Almost no utilities are requiring customer consent to data collection when installing smart meters. On the contrary, utilities install the privacy invading equipment and apparently assume consent.]“Require consent to data collection.”
“Minimize collection of personal data.”
[Commentary: In contrast to minimizing data collection, most utilities appear to be collecting as much data as the purchased equipment can handle.]
“In any case, the utility’s need for consumption data should not be at the level of the individual consumer.”
[Commentary: As indicated in the paper, the utility has no need for consumption data at the level of the individual consumer; therefore there is no basis for its collection and retention unless explicit consent is received from the customer.]
What about this quote from the paper?
“Consumers may become alarmed at the privacy risk, motivating legislation calling for an expensive retooling of the system. Judicial action may also put the program at risk. Whether from public outcry or judicial action, systems that forsake privacy-awareness may find themselves shut down.”
As one can easily see, utilities are deploying smart meters in total disregard of the guidance provided above, ignoring and denying the privacy concerns and interests of consumers, thereby putting them at risk. So, based upon the words in the above referenced paper, we need a “retooling of the system.”
Utilities must immediately change course and respect the rights of the consumer. Otherwise, as stated in the Wicker and Thomas paper, those “that forsake privacy-awareness may [and should] find themselves shut down.”
Could the risks not be more clear? It is not like I am making this stuff up. I am just quoting information right from a paper referenced in a recently released White House report on “Big Data” from the “Executive Office of the President.”
Other selected quotations in the updated privacy document released by SkyVision Solutions include the following:
“[N]ew data flow [from smart meters] removes a structure that once afforded privacy protection for in-home activities (that is, the walls, combined with a low level of detail about energy consumption) and replaces it with a system that breaches the home’s walls and exposes real-time consumption data.”
“[E]ven the simplest data mining and pattern-matching tools can convert power consumption data into information about events within ‘the sacred precincts of private and domestic life.’”
Wake up people and be a part of the solution mentioned in the Wicker and Thomas paper, whether it be motivating legislation, judicial action, or just holding your utility commission and utility company accountable for ignoring your rights.
Let us protect the “the sacred precincts of private and domestic life” for ourselves and our children. At the very least from a privacy perspective, explicit consent of the customer/citizen must be required prior to granular usage data collection by the utility. Beyond that of course, when one takes into account the various other significant risks related to “advanced” metering, the entire program needs to be halted in its tracks and completely “retooled.”
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To download the fully updated privacy invasion report by SkyVision Solutions, click on the hyperlink: Utility Smart Meters Invade Privacy. 
About the Author
K. T. Weaver is a health physicist who was employed in the nuclear division of a leading electric utility for over 25 years. He served in various positions, including Station Health Physicist, Senior Health Physicist, corporate Health Physics Supervisor, and corporate Senior Technical Expert for Radiobiological Effects. K.T. has earned a B.S. in Engineering Physics and an M.S. in Nuclear Engineering with a specialty in radiation protection. He also operates the “SkyVision Solutions” website at www.skyvisionsolutions.org.
I would like to inject some cold hard reality into the
“state actor” discussion. First, I want to say that I spend 40-60 hours a week
fighting smart meters. I am not saying that they do not invade privacy, because
they do. But here are some facts that must be taken into account.
1. If the utility is not currently receiving federal (or state) money,
the likelihood of proving that the utilty is a state actor is very, very
minimal.
2. This is especially true because of the U.S. Supreme Court decision in
Jackson v Metropolitan Edison Co, 419 US 345 (1974). This case was decided
under the 14th Amendment. It also applies to the 4th Amendment,
because the 4th Amendment is applied to the states through the 14th.
In Jackson, the Court found that the utility is not a state actor. The Court ruled that the public service
commission’s approval of the utility
company’s business practices did not transmute the utility’s actions into state action. This is exactly the
scenario across the country. The utility proposes an action, the state approves
it. The 14th Amendment offers no remedy for private misconduct.
While there are many arguments to be made against this, and three liberal
justices dissented on a Supreme Court that was much more liberal than it is
today, the fact remains that unless Jackson is overturned, it remains the law
of the land. The likelihood of it being overturned is faint, as the Court is
even more conservative than it was in 1974.
3. Two recent state
supreme court decisions have found no
expectation of privacy in the electricity usage data from the meter.
In State v. Liebold, 2013-Ohio-1371 (Ohio Ct. App. 2013), the court
found that individuals do not have a reasonable expectation of privacy in their
electricity usage records and that the police do not need probable cause to
obtain them (this effectively means no warrant is required). In United
States v. Mcintyre, 646 F.3d 1107 (8th Cir. 2011), the court ruled
that the electricity usage data was voluntarily transmitted to the utility and
hence there was no reasonable expecation of privacy in the data. See also State v. Coleman, 2012-Ohio 6042 (Ohio Ct. App. 2012).
4. The Naperville case
also found no privacy expectation. Naperville also did not prove that the smart
meter data collection was more intrusive than the analog collection.
5. It might be possible
to bring a suit prior to installation of the smart meter on privacy grounds.
6. It might be possible
to argue various other fine points and get around Metropolitan, but this will be
quite difficult.
I believe the legal arguments are compelling that smart meter technology unreasonably invades privacy, and the SkyVision Solutions privacy document articulates a message that should prevail in the Courts. That said, citizen initiated lawsuits are limited by funds available to fight corporations and/or city governments with deep financial pockets. This is why a partial objective of the released document was stated “to raise broad awareness of the type of full argument that needs to be made in order to have better success in convincing legislators, government officials, and others that smart meters unreasonably invade privacy [hopefully without lawsuits].” It was further stated that “reasoning outlined in [the] document can be adapted for use in both Federal and civil lawsuits, as applicable, but parties need to be prepared for possible COSTLY and LENGTHY legal proceedings.”
I see nothing in your referenced ‘Jackson v Metropolitan Edison Co’ case from preventing the logic outlined by the ‘Palmer v Columbia Gas of Ohio’ case from succeeding on the issue of “state actor” as outlined in Attachment A of the privacy document. The decision in the ‘Metropolian’ case was basically that “Pennsylvania is not sufficiently connected with the challenged termination to make respondent’s conduct attributable to the State for purposes of the Fourteenth Amendment,…” The assertion of SkyVision Solutions is that the MANDATED installation of invasive technology that collects more information than is customary for billing purposes DOES IN FACT make the state “sufficiently connected” to the challenged smart meter installations, and thus the utility cannot escape constitutional limitations.
Your referenced recent state decisions do not address the fact that smart meter data can be used to reveal discrete information about a person’s life when collected in excess of that required for billing purposes. This was addressed within the context of the released privacy document where it was stated that “by using existing case law rationale, … it can be concluded that if electricity usage records contain more than ‘gross’ information and in fact contain incremental usage information, … it should be concluded that hourly or 15-minute (or sub-15-minute) incremental, granular, fine-grained, high-frequency type of energy usage measurements collected by digital smart meters should justifiably receive a higher level of constitutional privacy protection.”
In your reference to Naperville, you stated that “the Naperville case also found no privacy expectation.” What the Judge actually ruled is that “Plaintiffs have no reasonable expectation of privacy in the aggregate measurements of their electricity usage … and they have not alleged that Defendant is currently collecting more detailed information about their electricity usage beyond the aggregate measurements without their consent.”
It is believed that the Judge did not have sufficient knowledge based upon material submitted to the Court to properly evaluate the nature of data collected by smart meters. As stated in the privacy document, “[h]opefully, a Court can be persuaded to recognize that the ‘Defendant’ in the case … misused the term aggregate in referring to incremental, granular, fine-grained, high-frequency type of energy usage measurements as ‘aggregate’ measurements.” The Plaintiff resubmitted a more comprehensive Complaint in April 2013, and the Judge has not yet made a ruling. The Naperville lawsuit remains active.
Erm, “SM Education Network”, it’s rather obvious even after a cursory review of facts that the state is working hand-in-glove with corporations to illegally invade homes and trounce privacy rights through this technology.
1) It appears the entire judicial system is now effectively compromised. http://www.cnet.com/news/u-s-gives-big-secret-push-to-internet-surveillance/
2) The 2013 NSA spying scandal — and the administration’s response: to basically attempt to defend or legitimize spying. Nuff said.
3) http://www.sfchronicle.com/business/article/Calif-utilities-yield-energy-use-data-4611159.php
4) http://www.smartgridnews.com/artman/publish/Technologies_Metering/Now-utilities-can-tell-customers-how-much-energy-each-appliance-uses-just-from-the-smart-meter-data-6530.html
5) Google invested $3.2 billion into Nest — “smart” thermostats. Now, why do you think the world’s biggest invader of privacy would invest that massive amount into a device that helps to regulate temperature???
Considering your handle & website name, your comment is surprising.
We respectfully suggest you may wish to re-watch the privacy section of Take Back Your Power again, to regain a sense of context.
FYI, Nest thermostats have nothing at all to do with SmartMeters and no SmartMeter is capable with communicating with any appliance or device anywhere, they are strictly for billing purposes (revenue collection).
Another fact: even is someone signs up for the SmartSwitch or SmartThermostat programs offered by the utilities, these thermostats have nothing at all to do with any SmartMeters.Ask your utility, they will all tell you the truth that one doesn’t need a SmartMeter at all for these programs.
These thermostat programs have been in use for over 15 years, they work by the utility sending a VHF radio signal (155 MHz) from a transmitter on a pole to your special thermostat/receiver., and these programs are voluntary, and only control the compressor motors on air conditioners by cycling them on and off, and they can be overridden if the customer chooses..
Pure BS in this article, there are no facts whatsoever, it’s all science fiction bunk.
I find it hard to imagine that there are people dumb enough to fall for this tripe, but there are a lot of brainwashed sheeple out there.
By the way, I refused a SmartMeter, and will never allow one to be installed on my private property, but not for BS reasons.
I think that these science fiction writers like K.T. Weaver are doing a disservice to the movement against SmartMeters, they make you look like a bunch of uneducated kooks who will believe anything because they know absolutely nothing about the subject.
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